PROSECUTORS refused Wednesday to drop the rape case against prominent Harare church leader Walter Magaya, prompting his lawyers to seek referral to the Constitutional Court.
Chief Law Officer Michael Mugabe indicated that the prosecution intends to indict Magaya for trial at the High Court despite his accuser withdrawing charges.
Magaya’s lawyers Advocate Thabani Mpofu and instructed by Admire Rubaya told Harare magistrate Vakayi Chikwekwe that this was unacceptable.
Advocate Mpofu said the complainant confessed to Acting Prosecutor-General Ray Goba that she was not raped, but that she had lied against Magaya.
“The State’s intention is not only tainted; it is not in accordance with Sections 65 and 66 of the Criminal Procedure and Evidence Act. It is also not in accordance with Section 56 (1) and 69 (1) as well as the liberty guarantee as set out in the Constitution,” said Mpofu.
“We are aware of two things -that the State has been advised by the complainant in writing that she does not wish to pursue the matter. The second and most fundamental one is that the complainant has made a decision and advised the State that the complaint she made is false.
“For these reasons, and bearing in mind that there are two processes, the first being intention to indict and the second being the committal in terms of the accused, therefore before there is committal, we are entitled to challenge the intention to indict.”
The defence also indicated that they wanted to bring the complaint, who was in the public gallery, to the witness stand to confirm that she had withdrawn charges.
Prosecutors said this was unheard of.
“There is no law which allows accused persons to challenge indictment at the High Court. Issues that arise after that are triable.
“It has never happened in our jurisdiction and the court should not entertain the application.”
Responding Advocate Mpofu said: “I am going to mount this application in a manner that I deem fit to protect my client’s rights. This is a preliminary application.
“There is no trial at this stage, so there are no State witnesses to talk about since they are witnesses for justice. This morning in my presence, the complainant told the State the position she had adopted.”
Magistrate Chikwekwe backed the defence argument saying: “The court cannot stop the State to indict the accused person.
“It is the State, not the complainant, which has that constitutional mandate. Complainant is just a witness, hers is a mere persuasion which is not binding.”

Magaya’s lawyers are expected to file written submissions for the application for referral to the Constitutional Court on Thursday tomorrow with the State responding on December 12.

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